Justice Center loses another case over constitutional question

Judges question their ability to use un-elected prosecutors

Rick Karlin

Published 5:11 pm, Friday, September 8, 2017

Albany

For the third time since March, a judge has dismissed a state Justice Center case against an alleged abuser over what court rulings have found is the agency’s lack of authority to prosecute the cases because their staff attorneys are not elected officials.

Nicole Hogdgon, a counselor at Albany’s Hope House drug treatment center, was charged in December with rape as well as misdemeanor sexual abuse and misconduct for allegedly having sex with a client.

But acting state Supreme Court Justice Roger McDonough dismissed the case, stating “the district attorney has not retained the ultimate responsibility to prosecute here and the court is therefore constrained to find that the Justice Center does not have the authority to prosecute this case.”

Created by Gov. Cuomo, the four-year-old Justice Center for the Protection of People with Special Needs was created to investigate and, when needed, prosecute those who care for the disabled, including residents of disability centers, special schools for troubled youths and in this case, drug and alcohol treatment centers. It was put in place in the wake of a newspaper series about problems of abuse and neglect that have plagued people who either live in or are treated in the facilities.

The Justice Center also has a hot-line where people report suspected problems and they have their own investigators, some of whom are retired police officers. The center also has its own prosecutors, which is becoming a problem in the eyes of the courts.

The issue emerged in March when state Supreme Court Justice Thomas Breslin dismissed charges against Marini Viviani, who was accused of having sex with a student at the LaSalle School, a facility in Albany for troubled teens.

She maintained her innocence and Breslin threw out the case on the grounds that it may violate the state constitution, which reserves the role of criminal prosecutions to elected officials, such as district attorneys who are publicly accountable since they have to run for office every four years.

As with the Viviani and another case that dismissed, the charges against Hogdgon were pursued by the Justice Center in conjunction with the Albany County district attorney.

But the district attorney’s office should have taken a lead role, McDonough found, which was what the other judges have ruled.

“The district attorney’s consent here is insufficient to confer prosecutorial authority on the Justice Center … the district attorney clearly has not retained the ultimate responsibilities of his office as to this indictment,” McDonough wrote. “Finally, defendant restresses the Justice Center’s unelected status, lack of any tenure limits and lack of any accountability to the public.”

It wasn’t immediately clear on Friday if the Justice Center would appeal the latest ruling. Spokesman William Reynolds said they are reviewing the decision which became public on Friday.

If the trial court decisions withstand appeals, it could force the Justice Center to change how they prosecute cases. They might have to work under the direct control of local district attorneys or the state attorney general to prosecute criminal charges.

That’s similar to what a special drug prosecution unit in New York City does.

Attorney General Eric Schneiderman also has taken an interest in the question.

McDonough acknowledged the attorney general's interest, noting in his ruling that “the court must also consider the attorney general’s unique stance here of actually challenging the constitutionality of the statute rather than seeking to uphold it.”